Friday, August 20, 2010

The big business attempt to derail the anti-HST initiative was an amazing bungle.The six business associations made things worse for the Liberals by launching the last-minute legal challenge to the petition signed by some 705,000 British Columbians. And B.C. Supreme Court Chief Justice Robert Bauman quickly dismissed their arguments Friday, ruling that the anti-HST effort "complies with the spirit and the letter" of the initiative legislation.Bauman noted Premier Gordon Campbell had even described the initiative petition as "a victory for democracy." (Which, naturally, raises questions about what the business groups were attempting to achieve.)It was a thorough slapdown for the legal challenge.Lawyers for the business groups - the Council of Forest Industries, Mining Association of B.C., Independent Contractors and Businesses Association, Western Convenience Stores Association, Coast Forest Products Association and the B.C. Chamber of Commerce - argued the Chief Electoral Officer should never have approved the initiative.Initiatives can only be launched on issues within provincial jurisdiction. The HST was imposed by the federal government and isn't a provincial tax at all, the business groups argued. The draft bill extinguishing the tax, part of the initiative process, was therefore fatally flawed.Leave aside the legal issues for a second and just consider the argument based on common sense. The federal government says it didn't bring the HST. The business groups are arguing the provincial government didn't bring it in either. A new tax, apparently, just happened - maybe the tax fairy brought it.Bauman rejected the argument on legal grounds. There might be constitutional problems in repealing the tax, he agreed. But the standard set out in the initiative act is simply that the matter is within the jurisdiction of the province. Bauman noted the draft bill calls for the cancellation of the Comprehensive Integrated Tax Co-ordination Agreement between the federal and provincial governments. That's the agreement to introduce the tax and, he noted, it's clearly within provincial jurisdiction.The business groups also argued the draft bill that would end the HST wasn't clear enough. Bauman said that just wasn't true.It was a rout. All the business groups succeeded in doing was angering many members of the public, who objected to an attempt to subvert a successful grassroots democratic effort. (One lauded by the premier, remember.) And they reminded people that businesses are paying $1.9 billion less in taxes under the HST, while individuals and families are paying $1.9 billion more.None of this means the tax will be repealed.The anti-HST effort now goes to the legislative initiatives committee, which has six Liberal MLAs and four New Democrats. The committee has 90 days to choose one of two courses.It can pass the draft bill to repeal the tax on to the legislature. The government is free to ignore it, amend it or use its majority to vote it down.Or it can send the measure to a province-wide referendum in September 2011.That might be appealing in some ways. The standards for success in a referendum are daunting. To pass, the anti-HST side would need the support of more than 50 per cent of registered voters across the province and in at least two-thirds of riding. The key words there are "registered voters." It's not a question of getting a majority of the people who turn out to vote; it has to be a more than 50 per cent of those on the voters' list. Those who don't show up - about 45 per cent in the 2009 election - would be counted as supporting the HST.And even if the anti-HST side is successful, the result isn't binding.There are no good choices for the Liberals. Assuming they won't retreat on the tax, public anger will continue and recall campaigns will soon be launched against vulnerable MLAs.The Campbell government has dug a very deep hole for itself. Footnote: The initiatives committee is chaired by Terry Lake, a first-term Liberal MLA from Kamloops. The other Liberals are Eric Foster and John Slater from the Okanagan, Pat Pimm of Peace River North and Richard Lee and Dave Hayer from the Lower Mainland.The New Democrats are Jenny Kwan and Mike Farnworth from the Lower Mainland, Katrine Conroy from Kootenay West and Rob Fleming from Victoria. The Liberals should start worrying about how the committee process is going to go.

Thursday, August 19, 2010

The controversy over interim Chief Electoral Officer Craig James’s decision on the anti-HST initiative is another self-inflicted wound for the Liberals.It raises questions, again, about why the Campbell government seems to be fumbling so many issues.James has been much abused for deciding not to send the legislation rescinding the HST to a legislative committee even though opponents of the tax gathered the required signatures on their petition. Unsupported accusations of partisanship and political interference have been flying around.I’m not sure James made the correct decision, but see no evidence of a political agenda. James has been clerk of committees at the legislature for more than two decades, working closely with NDP and Liberal governments and MLAs from all parties. He is also, in my experience, a nice guy and in 10 years in the Press Gallery I never saw a hint of partisanship or sneakiness or anything but quality public service. The New Democrats have stated they have “enormous respect” for James.But the Liberals put him in this mess and created the perception of possible political interference. And it was unnecessary.The critical qualities in a chief electoral officer are competence, non-partisanship and absolute independence. Otherwise, the risks of real and perceived election-rigging undermine democracy. Not just in developing countries – think back to the recounts and hanging chads and protracted political wrangling that led to George W. Bush’s election as U.S. president in 2000. That kind of scenario is highly unlikely here.The Election Act sets strict rules to ensure independence and guard against partisan appointments. The Chief Electoral Officer isn’t even allowed to vote – the only citizen, as far as I know, ordered to forego that right.More significantly, candidates for electoral officer’s job must be the unanimous choice of a legislative committee of government and opposition MLAs and approved by a vote in the legislature before being appointed by the lieutenant governor.And they serve fixed terms, to ensure the threat of firing does not affect their decisions.But James is an acting chief electoral officer. He was appointed by the Liberal government. The New Democrats complained they weren’t adequately consulted.The legislative guarantees of independence and non-partisanship have been subverted, no matter who is in the job.There was no reason for the Liberals to create this problem. The Chief Electoral Officer, remember, serves a fixed term. He or she oversees two elections; one year after the second one, the appointment ends.So the Liberals have known, literally since the day former electoral officer Harry Neufeld started work in 2002, that his term would end in June of this year and a replacement would be needed.But they things slide. Maybe they were thinking about re-appointing Neufeld until he delivered an unfavourable decision barring a taxpayer-funded pro-HST ad campaign during the petition drive.Or maybe the government has just lost its grip on things.The government told Neufeld in April he wouldn’t be re-appointed.But the all-party committee responsible for finding a new chief electoral officer wasn’t created by the government until May 6. It has met once, for less than an hour, and has no meetings scheduled. The legislature, which has to vote on the eventual choice, is not scheduled to meet until next spring.That means, potentially, almost a year with an interim chief electoral officer, appointed by the party in power. A year in which highly controversial issues about recall campaigns and the anti-HST initiative will emerge. A year of questions about the independence and political neutrality of Elections B.C., unfair or not.The Liberals were elected in part because voters wanted competence. But a competent government would have looked ahead and ensured a new chief electoral officer was ready to take over when the incumbent’s fixed term ended.The Liberals didn’t do that. And they and, unfortunately, James are taking a beating as a result.Footnote: The delay will continue to hurt the Liberals. It’s likely the legislature will have to be recalled to vote on the committee’s recommendation this fall. That will give New Democrats a chance to question cabinet ministers in a host of topics for at least a few days.And it will let them point out all the issues the legislature could be dealing with if the government wasn’t determined to keep the sitting as brief as possible.

The controversy over interim Chief Electoral Officer Craig James’s decision on the anti-HST initiative is another self-inflicted wound for the Liberals.It raises questions, again, about why the Campbell government seems to be fumbling so many issues.James has been much abused for deciding not to send the legislation rescinding the HST to a legislative committee even though opponents of the tax gathered the required signatures on their petition. Unsupported accusations of partisanship and political interference have been flying around.I’m not sure James made the correct decision, but see no evidence of a political agenda. James has been clerk of committees at the legislature for more than two decades, working closely with NDP and Liberal governments and MLAs from all parties. He is also, in my experience, a nice guy and in 10 years in the Press Gallery I never saw a hint of partisanship or sneakiness or anything but quality public service. The New Democrats have stated they have “enormous respect” for James.But the Liberals put him in this mess and created the perception of possible political interference. And it was unnecessary.The critical qualities in a chief electoral officer are competence, non-partisanship and absolute independence. Otherwise, the risks of real and perceived election-rigging undermine democracy. Not just in developing countries – think back to the recounts and hanging chads and protracted political wrangling that led to George W. Bush’s election as U.S. president in 2000. That kind of scenario is highly unlikely here.The Election Act sets strict rules to ensure independence and guard against partisan appointments. The Chief Electoral Officer isn’t even allowed to vote – the only citizen, as far as I know, ordered to forego that right.More significantly, candidates for electoral officer’s job must be the unanimous choice of a legislative committee of government and opposition MLAs and approved by a vote in the legislature before being appointed by the lieutenant governor.And they serve fixed terms, to ensure the threat of firing does not affect their decisions.But James is an acting chief electoral officer. He was appointed by the Liberal government. The New Democrats complained they weren’t adequately consulted.The legislative guarantees of independence and non-partisanship have been subverted, no matter who is in the job.There was no reason for the Liberals to create this problem. The Chief Electoral Officer, remember, serves a fixed term. He or she oversees two elections; one year after the second one, the appointment ends.So the Liberals have known, literally since the day former electoral officer Harry Neufeld started work in 2002, that his term would end in June of this year and a replacement would be needed.But they things slide. Maybe they were thinking about re-appointing Neufeld until he delivered an unfavourable decision barring a taxpayer-funded pro-HST ad campaign during the petition drive.Or maybe the government has just lost its grip on things.The government told Neufeld in April he wouldn’t be re-appointed.But the all-party committee responsible for finding a new chief electoral officer wasn’t created by the government until May 6. It has met once, for less than an hour, and has no meetings scheduled. The legislature, which has to vote on the eventual choice, is not scheduled to meet until next spring.That means, potentially, almost a year with an interim chief electoral officer, appointed by the party in power. A year in which highly controversial issues about recall campaigns and the anti-HST initiative will emerge. A year of questions about the independence and political neutrality of Elections B.C., unfair or not.The Liberals were elected in part because voters wanted competence. But a competent government would have looked ahead and ensured a new chief electoral officer was ready to take over when the incumbent’s fixed term ended.The Liberals didn’t do that. And they and, unfortunately, James are taking a beating as a result.Footnote: The delay will continue to hurt the Liberals. It’s likely the legislature will have to be recalled to vote on the committee’s recommendation this fall. That will give New Democrats a chance to question cabinet ministers in a host of topics for at least a few days.And it will let them point out all the issues the legislature could be dealing with if the government wasn’t determined to keep the sitting as brief as possible.

Tuesday, August 17, 2010

Big business groups in B.C. are the NDP's best allies right now. Just when the Liberals thought the anti-HST anger might be fading, six big business associations have got voters riled up again.The groups - the Council of Forest Industries, Mining Association of B.C., Independent Contractors and Businesses Association, Western Convenience Stores Association, Coast Forest Products Association and the B.C. Chamber of Commerce - want the B.C. Supreme Court to rule the anti-HST petition invalid. They filed a legal challenge one day before the proponents delivered petitions with 700,000 names calling for the tax to be rescinded.The challenge, along with a counter argument from opponents that the HST itself is illegal because the legislature never approved it, are being heard in B.C. Supreme Court this week. Chief Justice Robert Bauman will decide the merits of the arguments.But the Liberals have already been badly hurt, no matter what Bauman decides.The government had decided people's anger was easing. That's why Finance Minister Colin Hansen took the heat for dumping 1.6 million pro-HST flyers in the garbage. Being criticized for waste was considered better than sending out brochures reminding people about the new tax.But the legal challenges and resulting complications have fuelled new anger about the tax and the way it was introduced.For starters, the business groups' lawsuit is a reminder that they're the big winners with the HST. Companies get to pay $1.9 billion less in taxes. Families and individuals will pay an extra $1.9 billion to pay for the break for the business community.And the case reinforces some voters' impression idea that the Liberals place the interests of companies ahead of the citizens. That suspicion is heightened by the six groups $380,000 in political contributions to the Liberals since 2001. (Their members have contributed millions more.)Things got even worse for the government after Elections B.C.'s fumbled its handling of the anti-HST initiative. It finished a review of the petitions and concluded the opponents had the required signatures from 10 per cent of registered voters in all 85 ridings.But interim chief electoral officer Craig James decided he would not send the petition and proposed legislation to rescind the tax to a committee of MLAs, the next step in the process, until after the court cases are resolved.Worse, James refused to provide a public explanation for the decision until this week, when he responded to a letter from NDP MLA Leonard Krog.James said he sought independent legal advice. The lawyer for the business groups also urged him not to send the initiative to the legislative committee, he noted.The delay wouldn't be long, James concluded, and it would be prudent to sit on the petition until after a court decision. It's a defensible argument, but not compelling. The committee would not likely have been in any rush to deal with the issues until after the court rulings anyway. Simply passing on the initiative - which Elections B.C. had already approved - wouldn't undermine the independence of the courts.Right or wrong, the decision ramped up public anger. The anti-HST forces had succeeded in getting more than 700,000 names on the petitions, meeting a standard many considered impossible. Then not only did big business launch a legal attack, but Elections B.C. wouldn't send the initiative to the committee.For a lot of voters, this started to look like their legitimate efforts to exercise their democratic rights were being thwarted. The rhetoric about political interference was over the top, but it reflected real anger.The court case is expected to finish this week. Bauman will then rule on whether the HST was never properly passed by the legislature, as the opponents allege, and whether the anti-HST initiative is fatally flaws, as the business groups claim.In the meantime, voter anger over the tax, the way it was introduced and the government's response is aboil once again.Footnote: If the initiative goes ahead after the court challenges, the committee of MLAs has 90 days to send the issue back to Elections B.C. for a non-binding referendum or to send the bill rescinding the tax to the legislature. In either case, the Liberal majority can ultimately vote to defeat the legislation and keep the tax. Which would mean, though, conceding the next election to the NDP.